ChiefJustice

James T. Worthen

Twelfth Court ofAppeals Justices

Sam Griffith

Diane DeVasto

Wednesday, November 02, 2005

Ms. Deborah J. Race

Ireland, Carroll & Kelley, P.C.

6101 S. Broadway

Suite 500

Tyler, TX 75703

Mr. G. Roland Love

Winstead Sechrest & Minick PC

5400 Renaissance Tower

1201 Elm Street

Dallas, TX 75270

Ms. Brenda K. Hicks

Hicks & Hicks

513 North Church Street

Palestine, TX 75801

RE: Case Number:

Trial Court Case Number:

Mr. Daniel F. Dean

Dean, Coe & Associates, PC

603 East Lacy

P.O. Box 1578

Palestine, TX 75802-1578

Mr. Stephen Evans

P.O. Box 754

513 North Church

Palestine, TX 75801

Tammie Bailey

2212 Hwy. 87 North

Center, TX 75935

12-03-00374-CV

9216

Clerk

Cathy S.Lusk

Chief StaffAttorney

Margaret Hussey

Style: Billie Wiggins and Carl Hamilton

v.

Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King, Warren King,

Elkhart State Bank, Kay Pennington and Neches Hills Property Owners Association

Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and

numbered cause. Also enclosed is a copy ofthe court's judgment.

Very truly yours,

CATHY S. LUSK, CLERK

By: KdjuiiA. Mfl<

Katrina McClenny, Chief Deputy Clerk

CC: Hon. Deborah Oakes Evans

Hon. John Ovard

Ms. Janice Staples

1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193

ServingAnderson, Angelina,Cherokee, Gregg,Henderson, Houston,Nacogdoches,Rains,Rusk, Sabine,SanAugustine, Shelby, Smith,Trinity,

Upshur, Van Zandt and Wood Counties

www.12thcoa.courts.state.tx.us
NO. 12-03-00374-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BILLIE WIGGINS AND

CARL HAMILTON,

APPELLANTS

§

BRUCE BARRETT, MITCHELL BAILEY, §

ELMO J. KING, LETHA KING, DA VID KING,

WARREN KING, ELKHARTSTATE BANK,

KAY PENNINGTON, AND NECHES HILLS

PROPERTY OWNERS ASSOCIATION,

APPELLEES §

APPEAL FROM THE 87TH

JUDICIAL DISTRICT COURT OF

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

This is an appeal of a summary judgment rendered in a trespass to try title case. Appellants

Billie Wiggins and Carl Hamilton complain in two issues that the trial court erred in granting

summary judgment for Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King,

Warren King, Elkhart State Bank, Kay Pennington, and Neches Hills Property Owners Association,

Appellees. We reverse and remand.

Background

Appellants sued Appellees for trespass to try title and for a declaratoryjudgment that certain

deeds into Appellees are void and that Appellants are the owners of the 31.374 acre tract in dispute.

Appellants also sought actual and exemplarydamages and attorney's fees. Various Appellees filed

motions for traditional and no-evidence summary judgments, and Appellants filed a traditional
motion for partial summary judgment. See Tex. R. Civ. P. 166a(a), (i). The trial court denied

Appellants' motion for summary judgment and granted Appellees' motions. All Appellees were

named as parties to the final summaryjudgment.

Appellants claim an undivided interest inthe subject tract through their grandfather, Richard

Crawford, whose fifty acre homeplace, Appellants assert, included within itsfences allofthe31.374

acre tract incontroversy. Intheir petition, they claimed title totheproperty (1) byrecord title, (2) by

adverse possession under the ten and twenty-five year statutes, and (3) under the doctrine ofprior

possession.

Appellee Bruce Barrett filed a no-evidence summaryjudgmentmotion contending there was

no evidence of anyof the elements ofproofrequired under the three, five, ten, andtwenty-five year

statutes.

Appellees Elmo J. King, Letha King, andElkhart State Bank filed a no-evidence summary

judgment motion maintaining that Appellants could produce noevidence ofrecord title. They also

claimed in their no-evidence motion that Appellants had no evidence sufficient to describe the

property adversely possessed nor any probative evidence to establish any of the listed requisite

elements of the ten or twenty-five year statues. Their no-evidence motion included a traditional

summaryjudgment motion seeking to establish thatAppellants could notrecover underthedoctrine

of prior possession because the movantsheld record title to the property. I n support oftheir

traditional motion, the movants attached a series of deeds beginning with a 1972 conveyance from

James Wren to Bascom Bentley.

Appellee Cynthia Bailey, Independent Executrix of the Estate of Mitchell Bailey, deceased,

subsequently joined both motions.

In theirresponse to themotions forsummaryjudgment,Appellants presented no evidence of

record title, but offered affidavits to support their claims oflimitations and prior possession.

Standard of Review

Summary judgment decisions are reviewed by appellate courts de novo. Lavaca Bay

Autoworld,L.L.C. v.MarshallPontiacBuickOldsmobile, 103S.W.3d650,653 (Tex. App.-Corpus

Christi 2003, no pet.). "When both sides move for summaryjudgment and the trial court grants one
motion but denies the other, the reviewing court should review both sides' summary judgment

evidence, determineall questionspresented,and renderthejudgment that the trial courtshould have

rendered." Id. (citingFMProps. Operating Co. v. City ofAustin, 22S.W.3d 868,872 (Tex. 2000)).

Traditional motions forsummaryjudgmentandno-evidence motionsforsummaryjudgmentinvoke

different standards of review. Lavaca, 103 S.W.3d at 653. For traditional motions for summary

judgment, thekeyquestion is "whether the summary judgment proofestablishes as a matter of law

that thereis no genuine issue of fact as to one or more of the essential elements of the ... causeof

action." Id. (quoting Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)). For noevidence motions for summaryjudgment, the legal sufficiencystandard applied to pretrial directed

verdictsisappropriate. "Ifthenonmovant produces evidence toraisea genuine issueofmaterial fact,

summary judgment is improper." Lavaca, 103 S.W.3d at 653.

None of the appellees filed a traditional motion for summaryjudgment seekingto negate as

a matter of law one or more elements of Appellants' claim of adverse possession under the ten or

twenty-five yearstatute of limitations. Therefore, if Appellants produced evidence amounting to

more than a scintilla on each ofthe requisite elements to recovery under either statute, the trial court

erred in granting summary judgment.

Applicable Law

"A person must bring suit not later than 10 years after the day the cause of action accrues to

recoverreal propertyheld in peaceableand adversepossessionby one who cultivates,uses, or enjoys

theproperty." Tex. Civ.Prac.&Rem. Code Ann. § 16.026(a) (Vernon 2002). Thetwenty-five year

statute provides that "[a] person, regardless of whether the person is or has been under a legal

disability, must bring suit not later than 25 years after the day the cause of action accrues to recover

realpropertyheld in peaceable and adverse possession by anotherwhocultivates, uses,or enjoys the

property." Id. § 16.027. "Adverse possession" means an actual and visible appropriation of real

property,commencedand continuedunder a claimofright that is inconsistentwith and hostile to the

claim of another person. Id. § 16.021(1). Peaceable possession is defined as possession "that is

continuous and is not interrupted by an adverse suit to recover the property." Id. § 16.021(3).

Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e.,

adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive
ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).

Evidence

The affidavit ofJames M. Crawford recited that he was born three miles from his Uncle

Richard Crawford's homeplace in 1922. When he went to school, he walked or rode a horse across

the Wren property near his uncle's home. James Crawford stated that from the time he was three or

four years old until he joined the Soil Conservation Corps in 1939, Richard Crawford lived on his

homeplace, farmed on his homeplace, and raised his family there. James Crawford returned to

Palestine in 1946 from military service. After that time, his Uncle Richard Crawford continuously

resided on his homeplace until his death. James Crawford stated that the affidavit ofJames Wren

correctly described the Richard Crawford. From his earliest recollection, he knew that Richard

Crawford lived on and farmed the homeplace growing cotton, corn, peas, and other vegetables.

Richard Crawford, he stated, planted fruit trees there. He also stated that, after Richard Crawford's

death, his descendants continued to live on the property.

James Wren stated in his 1978 affidavit that Richard Crawford purchased a fifty acre tract

adjoining the McCleod survey in 1917 and lived there until his death in 1949. He further stated that

neither he nor his family had ever asserted a claim to the Richard Crawford tract.

PlaintiffBillie Wiggins recited in her affidavit that she was born in 1943 on the homeplace

ofRichard Crawford, her great-grandfather, and that, except for six months, she had lived there all

ofher life and still lived there. She said the fifty acre tract was fenced on all four sides and, since she

had lived there for most of her life, she was very familiar with its boundaries. She said Richard

Crawford and his heirs farmed and planted fruit and nut trees on the land in dispute and harvested

the fruit from the trees continuously for more than twenty-five years and until this dispute arose in

1993. She recited that she has paid taxes on the fifty acres known as the Richard Crawford Place and

said that the tax statements sometimes called it a part ofthe Payne Survey and other times described

it as part ofthe Payne and McCleod Surveys. She further stated that the 31.374 acres in dispute are

located within the Richard Crawford home place.

There is more than a scintilla ofevidence that from 1917 until 1950 there was a fifty acre farm

known as the Richard Crawford Place; that from the time ofJames Crawford's earliest recollection

(no later than 1930) until Richard Crawford's death in 1949 or 1950, Richard Crawford lived
continuously on the property, planted fruit and nut trees on it, and farmed it in cotton, corn, and

vegetables; and that during that time the fifty acre tract was enclosed by a boundary fence. The

affidavits of James Wren and James Crawford show that the fifty acre tract was known in the

neighborhood as the Richard Crawford Place and that Richard Crawford was regarded as its owner.

The summaryj udgment proof also shows that since Richard Crawford's death, his heirs have

continued to occupy and farm the place and that Appellants are among his heirs. In her affidavit,

Billie Wiggins states that, except for six months, she has lived on the farm all her life, that she is

familiar with its boundaries, and that the disputed 31.374 acre tract described by metes and bounds

lies entirely within the fifty acre tract adversely possessed by Richard Crawford and his heirs.

There is, however, no metes and bounds description ofthe Richard Crawford fifty acre tract,

although the disputed 31.374 acre tract claimed to lie within it is described by metes and bounds.

James Wren, in his 1978 affidavit, describes the tract as fifty acres lying adjacent to certain other

tracts, a description defendants assail as too vague to permit a surveyor to accurately locate it on the

ground.

A plaintiff in a trespass to try title suit must describe the premises claimed "by metes and

bounds, or with sufficient certainty to identify the same." Tex. R. Civ. P. 783(b). When a plaintiff

sues for a specific tract, the burden is on the plaintiffto prove the location ofthe adversely possessed

tract on the ground. Coleman v. Waddell, 151 Tex. 337, 340, 249 S.W.2d 912, 913 (Tex. 1952);

Thompson v. Texas CommerceNat'lBank Ass'n, 586 S.W.2d 138, 139 (Tex. Civ. App.-Houston

[lstDist] 1979, writ refdn.r.e.).

In Coleman, the court addressed the converse of the description problem presented here;

there, the adverse possession claimant failed to describe a smaller tract inside a sufficiently described

larger one. The Waddells claimed a described one hundred acre tract, their claim resting upon their

enclosure and continuous use of an approximately two acre garden plot for a period sufficient to

satisfy the ten year statute. Their claim failed as to the area outside of the garden, because the

evidence showed that during the limitation period the record owners, through their vendee Kirby

Lumber Company, had cut and removed the commercial timber from the property outside of the

garden. The court also rejected their claim to the enclosed two acre garden, because the Waddells

failed to allege or prove an adequate legal description ofthe smaller tract. "For that reason the trial
court could not renderjudgment in theirfavor for it." Coleman, 249 S.W.2d at 913 (emphasis

added).

In Thompson, the plaintiff claimed adverse possession by enclosure of a specifically

described two acre tract. The court rejected the plaintiffs claim because his proofdid not "establish

the physical location of each side ofthe enclosure on the ground." Thus, the plaintiff did not meet

his burden of establishing by prima facie proofthe ground location ofthe property described in the

petition." Thompson, 586 S.W.2d at 141.

Appellees argue that to avoid no-evidence summary judgment, Appellants' summary

judgment proofmust legally describe the 31.374 acres in dispute claimed to be adversely possessed

as well as the adversely possessed fifty acre tract that encompasses it, although a considerable part

ofthe larger tract is not in dispute.

Appellants contend that Rule 783 and the case law require that their pleading and proof

include a specific legal description for only that part ofthe adverselypossessed tract that is in dispute.

The rationale underlying the requirement that the petitioner in trespass to try title describe the

premises claimed "by metes and bounds, or with sufficient certainty to identify the same" is that,

absent such a description, the trial court cannot render a judgment that will effectively deliver

possession ofthe premises in controversy. Coleman, 249 SW.2d at 913; see Tex. R. Civ. P. 783(b).

This rationale does not support Appellees' argument. We conclude that to avoid no-evidence

summaryjudgment, Appellants' proofneed only legally describe the 31.374 acres in controversy, but

not the adversely possessed larger tract embracing it.

Conclusion

We conclude that Appellants presented summaryjudgment proof amounting to more than a

scintilla supporting each element oftheir adverse possession claim to the property in controversy.

The trial court's judgment is reversed, and the cause is remanded for further proceedings.

BILL BASS

Justice

Opinion delivered November 2, 2005.

Panel consistedofWorthen, C.J.,Griffith, J., andBass, RetiredJustice, Twelfth CourtofAppeals, Tyler, sittingbyassignment.

(PUBLISH)

6 •
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 2, 2005

NO. 12-03-00374-CV

BILLIE WIGGINS AND CARL HAMILTON,

Appellants

V.

BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING,

LETHA KING, DAVID KING, WARREN KING, ELKHART STATE BANK,

KAY PENNINGTON, AND NECHES HILLS PROPERTY OWNERS ASSOCIATION,

Appellees

Appeal from the 87th Judicial District Court

of Anderson County, Texas. (Tr.Ct.No. 9216)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is the opinion ofthis court that there was error in the judgment as

entered by the trial court and that the same should be reversed and the cause remanded to the court

below for further proceedings.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of

the court below be reversed and the cause remanded for further proceedings in accordance with

the opinion ofthis court; and that all costs ofthis appeal be, and the same are, adjudged against the

Appellees, BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING, LETHA KING,

DAVID KING, WARREN KING, ELKHART STATE BANK, KAY PENNINGTON, AND

NECHES HILLS PROPERTY OWNERS ASSOCIATION, for which let execution issue; and

that this decision be certified to the court below for observance.

Bill Bass, Justice.

Panel consistedofWorthen, C.J.,Griffith, J., andBass, RetiredJustice, Twelfth CourtofAppeals

Tyler,sitting by assignment.